A Question of Jurisdiction

Jonathan West
Head of Family and Matrimonial at City law firm Prolegal Limited

A recent case highlighted in The Daily Telegraph exemplifies the importance of jurisdiction.

In essence for a case to be heard in England (or Wales) ordinarily one of the jurisdictional criteria must be met - there is an exception to this, but that is an issue for a later date.

For current purposes jurisdiction depends upon whether the petitioner or respondent has a specific connection to England or Wales. The issue turns upon questions of habitual residence (broadly where you choose to live voluntarily on a settled basis) or domicile (where you consider your permanent home to be).

The courts have jurisdiction in the following circumstances:

• The Petitioner and the Respondent are habitually resident in England and Wales.

• The Petitioner and Respondent were last habitually resident in England and Wales and the

Petitioner or the Respondent still reside there

• The Respondent is habitually resident in England and Wales.

• The Petitioner is habitually resident in England and Wales and has resided there for at least a year immediately prior to the presentation of the petition.

• The Petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the petition.

• (in a matrimonial case only) The Petitioner and Respondent are both domiciled in England and Wales

Often the position is clear cut but that is not always the case. This was the position in the case of Lena Tang and Weng Choy - a high flying investment banker and her stay at home husband.

The paper reported that the couple lived an opulent lifestyle, living in multiple homes and amassing a £1million wine collection during their 15 years of married life. The marital assets were valued at £11 million and included a £4.5 million apartment in Kensington - described as "the jewel in the crown".

Choy filed for divorce in England but Tang has claimed that the English courts have no jurisdiction - and therefore they had no right to determine the case.

The appeal courts have ruled that Choy has been habitually resident in this country for a year before he filed the petition and therefore the matter can be determined here.

These arguments are by no means uncommon amongst the truly international couples - the reputation of the English judge's traditional generosity towards the financially disadvantaged party preceding them. Tang is no doubt fearful, rightly so, that the award that her husband will receive in this country is likely to dwarf that which he might receive elsewhere.

In 2012 Boris Johnson famously went on record saying that London was the ideal place for "injured" spouses to take their wealthier other halves "to the cleaners" - it seems that Tang is about to be cleansed.